I think originalism is entitled to invoke the “bear principle” — whatever its defects in terms of radicalism, indeterminacy, etc. ought to be judged against the other competing methodologies, not in the abstract. (“I don’t have to outrun the bear, I just have to outrun you!”) I don’t think originalism has to be justified on consequentialist grounds, but the consequentialist case refuting it is not proven.

Plus this line:

When the Constitution speaks really clearly on something, only academics would deny that it is the law.

This article lays out a legislative process failure theory of statutory interpretation. It first defends an intent-based approach to interpretation by arguing that Congress, in the process of drafting statutes, does not use the same mechanisms for determining meaning as do courts when they interpret them. Therefore, courts and legislatures comprise different linguistic interpretive communities. The article proceeds to define legislative process failure to occur when the mechanism of each community leads to different understandings of statutory text. The paramount question then becomes: what is the best response of the legal system to such failure? Legislative supremacy requires that the courts and Congress come to some accommodation to ensure that courts will interpret statutes in accord with the legislature’s understanding. That assumption, however, is satisfied so long as Congress knows how courts will interpret statutes and can adjust its process to ensure that the statutes it enacts will be interpreted as it intends.

Legislative process failure theory therefore leads to the subsequent question: which branch should accommodate the other’s method of attaching meaning to statutes, and under what circumstances? I conclude that, generally, legislatures cannot engage in judicial type inquiries into statutory meaning while drafting statutes because the cost of engaging such statutory analysis ex-ante – before identification of the potential provisions that might exhibit process failure – is prohibitive. But, once the legislature becomes aware of a process failure, the costs of engaging in judicial type textual inquiry become manageable, and the error costs of interpretation due to strategic manipulation of legislative meaning greatly increase. Hence, in the face of such awareness, usually a textual approach is justified.

Finally, having developed the legislative process failure of interpretation, the article considers several types of failures for which courts should accommodate the legislative approach to attaching meaning to statutes.

01/30/2014

In the current issue of the Cornell Law Review, Amy Coney Barrett (Notre Dame Law School) has the article Suspension and Delegation (99 Cornell L. Rev. 251). Here is the abstract:

A suspension of the writ of habeas corpus empowers the President to indefinitely detain those suspected of endangering the public safety. In other words, it works a temporary suspension of civil liberties. Given the gravity of this power, the Suspension Clause narrowly limits the circumstances in which it may be exercised: the writ may be suspended only in cases of “rebellion or invasion” and when “the public Safety may require it.” Congress alone can suspend the writ; the Executive cannot declare himself authorized to detain in violation of civil rights. Despite the traditional emphasis on the importance of exclusive legislative authority over suspension, the statutes that Congress has enacted are in tension with it. Each of the suspension statutes has delegated broad authority to the President, permitting him in almost every case to decide whether, when, where, and for how long to exercise emergency power. Indeed, if all of these prior statutes are constitutional, Congress could today enact a law authorizing the President to suspend the writ in Guantanamo Bay if he decides at some point in the (perhaps distant) future that the constitutional prerequisites are satisfied. Such a broad delegation undermines the structural benefits that allocating the suspension decision to Congress is designed to achieve. This Article explores whether such delegations are constitutionally permissible. It concludes that while the Suspension Clause does not prohibit Congress from giving the President some responsibility for the suspension decision, it does require Congress to decide the most significant constitutional predicates for itself: that an invasion or rebellion has occurred and that protecting the public safety may require the exercise of emergency power. Congress made this determination during the Civil War, but it violated the Suspension Clause in every other case by enacting a suspension statute before an invasion or rebellion actually occurred—and in some instances, before one was even on the horizon.

Administrative preemption is a convenience and contrivance for modern government. But, as hypothesized here, it is also a constitutional paradox. Specifically, in the federalism context the Court treats agency action as preemptive under the Supremacy Clause, which provides that certain federal “Laws” shall be supreme over state law. However, if agency action qualifies as “Law,” then it should be void under separation-of-powers principles (and thus ineligible to preempt state law). Meanwhile, if agency action does not qualify as “Law” (thus avoiding a separation-of-powers problem), then it should fall beyond the Supremacy Clause’s purview. Paradoxically, administrative preemption requires that agency action simultaneously qualify as “Law” for federalism purposes and “not Law” for separation of powers. The Court has never explained — much less acknowledged — this structural contradiction.

The paradox-hypothesis shines new perspective on the Court’s administrative preemption doctrine. But it also resurrects doubts about the Court’s theories of modern government. For instance, if the Court’s premise behind administrative preemption is that agencies make “Law,” then how should we understand the Court’s longstanding insistence otherwise in the separation-of-powers context? And, if unelected administrative officials can displace state law in Congress’s stead, what are we to make of the Court’s heralded political-safeguards theory of federalism? These inquests underscore the difficulty of settling on a constitutional premise that is both broad enough to justify administrative preemption, yet narrow enough to preserve the Court’s legitimating theories of modern government.

This Article posits that administrative preemption is incompatible with both the written Constitution and the Court’s interpretive glosses for modern government. Saving administrative preemption for pragmatic reasons may shade over, but does not resolve, this incoherence.

This may be the most important preemption article in some time. In my recent preemption article I assumed administrative preemption is not problematic as long as it is authorized by Congress in a constitutional delegation. But now I am not so sure.

01/28/2014

Air Wisconsin Airlines Corp. v. Hoeper, decided yesterday, presented the question whether the Aviation and Transportation Security Act (ATSA) gave Air Wisconsin immunity for its disclosures to the TSA regarding the possible dangers posed by Hoeper, a disgruntled employee. The ATSA generally provides immunity except for any disclosure “made with actual knowledge that the disclosure was false, inaccurate, or misleading” or “any disclosure made with reckless disregard as to the truth or falsity of that disclosure.” The key issue was whether Air Wisconsin would get immunity if its disclosures were in fact materially true, even if they were (a) made recklessly and (b) not true in every particular.

The Court, per Justice Sotomayor, noted that the statutory language tracked the Court’s previous “actual malice” standard in New York Times v. Sullivan. The opinion then contains this crucial passage:

One could in principle construe the language of the actual malice standard to cover true statements made recklessly. But we have long held, to the contrary, that actual malice entails falsity. [citing cases] …

Indeed, we have required more than mere falsity to establish actual malice: The falsity must be “material.” Masson v. New Yorker Magazine, Inc., 501 U. S. 496, 517 (1991). As we explained in Masson, “[m]inor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.’” Ibid. …

These holdings were settled when Congress enacted the ATSA, and we therefore presume that Congress meant to adopt the material falsity requirement when it incorpo­rated the actual malice standard into the ATSA immunity exception. “[I]t is a cardinal rule of statutory construction that, when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it is taken.” FAA v. Cooper, 566 U. S. ___, ___ (2012) (slip op., at 6) (internal quotation marks omitted). The actual malice standard does not cover materially true statements made recklessly, so we presume that Congress did not mean to deny ATSA immunity to such statements.

To be clear, this is originalism. It is statutory originalism, but it’s not different in method from ordinary originalist analysis.

For example, in an article I wrote with Saikrishna Prakash a while back (111 Yale L.J. 231), we asked whether the original meaning of the phrase “the executive Power” in Article II, Section 1, included at least some independent foreign affairs power. We concluded it did (even though one could in principle construe the language otherwise) in significant part because that is how the phrase had been used in well-known pre-1787 writings. That is, to paraphrase the words the Court quoted from FAA v. Cooper, we thought that when the framers (of the Constitution) employed a term of art (“executive Power”), they presumably knew and adopted the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken.

One might say that this isn’t the right way to interpret statutes (although the Court seems pretty sure about it for now – this part of the Hoeper opinion was unanimous -- and the key quote from Cooper is originally from a 1952 Jackson opinion). Perhaps the Court should interpret statutes to reach what the Justices think is the best result, at least if it is a possible reading of the text. And one might say that even if it is the right way to interpret statutes, it’s not the right way to interpret the Constitution. My point (for now) is just that some explanation is needed for these alternate positions, other than that originalism is a strange outlier. Whatever its status in constitutional law, statutory originalism is so ordinary we don’t even notice it.

In particular, I don’t think that ... “interpreting the Constitution according to its original meaning” should be interpreted to require that the Constitution be interpreted clause-by-clause without regard to whether the broader scheme set up by the Framers is lost in the process (for example, when the prior misinterpretation of one clause disrupts the constitutional balance in ways that might affect how other clauses should be interpreted).

I do think, however, that normative originalism as practiced by its leading American academic advocates generally exclusively involves clause-by-clause interpretation. By contrast, scholars who try to engage in holistic analysis, perhaps like my colleague Michael Greve, are often deemed to be “not really originalists.”

Erie Railroad Co. v. Tompkins was the most important federalism decision of the Twentieth Century. Justice Brandeis’s opinion for the Court stated unequivocally that “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. . . . There is no federal general common law.” Seventy-five years later, however, Erie finds itself under siege. Critics have claimed that it is “bereft of serious intellectual or constitutional support” (Michael Greve), based on a “myth” that must be “repressed” (Craig Green), and even “the worst decision of all time” (Suzanna Sherry). Other scholars, such as Caleb Nelson and Michael Green, have been less damning in their conclusions but nonetheless raised serious questions about Erie’s reasoning. Out in the real world, Erie’s restrictive vision of federal lawmaking has been undermined and circumvented by unfettered executive lawmaking and expansive theories of federal common law.

This article undertakes to rescue Erie from its critics. Rather than reinventing the case’s rationale, I argue that Justice Brandeis’s reasoning was fundamentally sound. Although the case Erie overruled — Swift v. Tyson — was surely correct when decided, Justice Brandeis rightly read the Rules of Decision Act to foreclose the broad practice of “general federal common law” that had arisen by the end of the nineteenth century. And Brandeis was right to worry about divergence between the law applied in state and federal courts sitting within the same jurisdiction. Most important, Erie announced a constitutional principle of judicial federalism — that federal courts may not make law on their own, even in areas where Congress could legislate. This principle forms the intellectual core of modern federalism doctrine, which is primarily concerned with procedural and political limits on national lawmaking.

More ambitiously, I hope that by shoring up Erie’s intellectual foundations this essay may lend support to the vision of limited federal lawmaking that Erie embodied — that is, one in which the federal separation of powers reinforces federalism by limiting the occasions on which federal lawmaking may displace state law. That vision is of more than theoretical import. Its implications may govern practical controversies ranging from the domestic force of customary international law to the preemptive effect of federal regulatory policies on state tort law. Likewise, in an era of resurgent dynamism at the state level, Erie’s respect for the preservation of state prerogatives in the absence of a federal legislative consensus takes on renewed importance.

Via Larry Solum at Legal Theory Blog, who names it the "Download of the Week" and says "Highly recommended. Download it while it's hot!"

01/26/2014

Lord Chief Justice Camden in Entick v. Carrington (1765) famously declared, “By the laws of England, every invasion of private property, be it ever so minute, is a trespass.” Whether these laws were of ancient lineage is doubtful. English law in the seventeenth century permitted local officials to enter private dwellings when searching for illegal game. No doubt a good common law attorney can find distinctions between what were deemed illegal searches during the late eighteenth century and what were deemed legal searches during the seventeenth century. Nevertheless, developments in state capacity probably better explain the origins of the Fourth Amendment than practice dating from the Magna Carta, the Assize of Clarendon, the Norman invasion or some other event marking the beginning of “time immemorial.”

What was the purpose of the American Constitution? What was it made to do by those who made it? This question — which might be at the center of constitutional theory — is not explicitly asked as often as one might think. Instead, it frequently takes a backseat to other questions about the appropriate mode of constitutional interpretation or the specific purposes of particular texts. And yet it is an important question. How did the Framers (and then the second Framers, the amenders) imagine their own purposes? What are legitimate ways to determine their purposes? Most importantly for the purposes of this colloquy, should their general purposes in constitutional design have any bearing on how courts review the constitutionality of congressional activity?

I have argued in many places — including in the prior pieces in this colloquy — that the Constitution was designed for fighting corruption. Others, including Professor Lawrence Lessig, have made similar arguments; in a brief to the Supreme Court in a recent case, Lessig chronicled in exhaustive fashion the depth and meaning of the word corruption to the men who wrote the Constitution. The argument shows how anti-corruptionism was understood as a central purpose at the time of its drafting. I have used the text of the Constitution, political debates, discussions, contemporary writings about the Constitution, and, most importantly, the debates inside the Constitutional Convention to show that the men who wrote the Constitution saw the Constitution’s job — or purpose — or function — to be anti-corruptionism.

In this Essay I turn away from proving that corruption was a purpose that motivated the Constitution, and I ask the readers to assume, for the sake of argument, that it was. I instead shift to Tillman’s challenge: Should a motivating purpose of the Constitution play a role in constitutional interpretation? If so, what role? Original intent of particular clauses is frequently called upon to fill in textual gaps in the Constitution. But what of original intent of the Constitution as a whole? Structure, in at least two instances — separation of powers and federalism — is sometimes used both to interpret particular texts, and to act something like a freestanding constitutional principle. Is this because separation of powers was a purpose of the Constitution? Purpose occupies an oddly undefined land — it is somewhere between structure, the purpose of particular clauses, and arguments about what constitutions in general are designed to do.

This Essay is an introduction to a generic argument about constitutional purpose and its role in court cases. It first examines what constitutional purpose might look like if it played a role in constitutional decisionmaking, and explains how purpose is different than closely related modes of constitutional interpretation.

This is the fourth and (I think) final part of the long-running exchange between Professor Teachout and Professor Seth Barrett Tillman in the Northwestern University Law Review Colloquy. Here are the previous contributions: